How the U.S. Can Lead the Way to Extraterrestrial Land Deals

We strongly support private property rights in space. And we believe in the power of private enterprise and are convinced that only entrepreneurship can lower the cost of doing business enough to fuel a space-based economy. On these important points we agree with Rand Simberg.

But we disagree completely on the path America should take to achieve space property rights.

Doug Bierend

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The basic idea is nothing new. In his book Unreal Estate: The Men Who Sold the Moon, Virgiliu Pop tracked hundreds of outer-space property rights claims over thousands of years, from individuals, kings, and countries, under various theories of law. All have failed the test of time.

The negotiators of the 1967 Outer Space Treaty knew that such claims would never stop unless the countries agreed once and for all that: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

James Dunstan

But wait, Simberg and others argue that Article II of the Treaty only prohibits national appropriation, leaving individuals free to do whatever they want in space. Well, not so fast. Article VI of the Outer Space Treaty states:

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.

Launching states are required to ensure that their nationals conduct activities in conformity with the provisions of the Treaty. There is, therefore, no way that the United States could confer the kind of private land grants Simberg proposes.

The “loophole” simply doesn’t exist.

Even if the United States withdrew from the Treaty in order to implement such land grants, what would stop the Chinese from adopting domestic legislation that went further? What if the first time a Chinese probe lands on the moon, the moon could be claimed by the “Great Wall Company,” owned by the People’s Liberation Army? The United States would then be left to argue that our law should be followed, but the Chinese law shouldn’t. That’s precisely the kind of territorial jockeying the Outer Space Treaty was intended to prevent.

So what would a truly practical proposal for securing space property rights look like? First, the Outer Space Treaty recognizes full ownership rights in objects and vehicles launched into, or constructed, in space.

Satellites are regularly bought and sold. In 2000, when a private company attempted to lease the Mir Space Station from the Russians, one of us (Dunstan) negotiated the deal — using a standard commercial building lease!

While many international space lawyers once defended the satellite monopoly of Intelsat, an intergovernmental consortium, the rise of PanAmSat in the 1980s clearly established the rights of private companies to operate in space. Similarly, the argument that orbital “slots” could only be allocated for short durations, lest they become “appropriated,” has given way to recognition of de facto property rights in orbits.

Together, these two developments have allowed the satellite industry to flourish, generating over $168 billion a year in revenue. Similarly, international law has evolved to recognize property rights in extracted resources. When the United States brought back 800 pounds of lunar rocks during the Apollo missions, and declared them to be “national assets,” there was an outcry from the international space law community that the samples should be turned over to the United Nations and distributed amongst all the nations of the world.

In one of the shrewdest moves in the history of international relations, the U.S. — rather than trying to establish the principle of private property unilaterally — turned to its archenemy, the Soviet Union, and exchanged Apollo samples for Soviet Luna samples. The Russians subsequently resold some samples, creating a small secondary market, and establishing customary international law.

Ultimately, tapping the resources of the Moon and asteroids will require two further steps. The Outer Space Treaty already restricts “potentially harmful interference.” Many international space lawyers interpret this to imply a narrow (say, half a mile) “safety zone” around active facilities or operations. Codifying this in a multilateral agreement, as proposed by space lawyer Wayne White, could help encourage investment. Simberg describes various potential business models for lunar mining. But rather than land grants, what these ventures really require is exclusive mining rights for limited durations to reward them for investing in prospecting.

Here, the law of the sea provides a helpful precedent. In the late 1970s, the Moon Treaty and the Law of the Sea Treaty were developing in parallel directions, declaring space and the seabed floor both to be the “common heritage of mankind,” and thus requiring that any economic activity be conducted by a U.N. agency.

But unlike Simberg’s land grant proposal, these licenses did not amount to permanent territorial claims that could be resold to raise capital — which is forbidden by both the Law of the Sea Treaty and the Outer Space Treaty — but only the exclusive right to mine a limited area for a limited time. As White proposes, a similar mining claim system for the Moon should be negotiated multilaterally.

But the best place to establish another pro-property precedent is right above our heads: We need clear rights to remove discarded satellites and used rocket stages from Earth orbit. Today, governments retain jurisdiction and control (as well as liability) over objects whose launch they licensed, even after they are abandoned. Thus, cleaning-up orbital debris — a serious and growing problem — requires the permission of the government that originally licensed each launch.

In contrast, the maritime laws of Wrecks, Finds, and Salvage, reward private parties for removing derelict vessels that are a threat to navigation. Congress could start by enacting a law stating that any object over which the United States has jurisdiction (except for classified payloads) is to be deemed orbital debris and abandoned once its useful life is over, meaning that any U.S. company could appropriate the debris by safely removing it. This could allow reuse or recycling of valuable satellites and rocket upper stages that are currently nothing but hazards.

Further, Congress should direct the State Department to begin working with other countries on the removal of debris that poses a collision threat. Safety zones, mining claims and salvage rights may not excite the “property rights base” the way land grants do. But they’re far more necessary, and practical, than land grants. They’re also well grounded in the basic Lockean conception of property that undergirds free markets (“mixing your labor with the soil”), unlike having governments give away land they don’t, and can’t, own under the Outer Space Treaty, as subsidies for space settlement.